MANN, Special Judge.
— From a conviction for violation of the Local Option Law in the circuit court of Newton county defendant appeáled to the St. Louis Court of Appeals, and the opinion was there rendered affirming the judgment. A motion for rehearing was filed and sustained. While the cause was pending in the St. Louis Court of Appeals upon rehearing, this court was created, and the cause transferred to this jurisdiction. Cox, J., being disqualified to sit, E. P. Mann was elected to sit in the case as special judge.
Appellant’s first contention is that since he was charged in three counts of the information with violation of the Local Option Law, and in the fourth count thereof with violation of the Dramshop Act, all under one verification, the counts are so inconsistent and contradictory that the verification amounts to no verification in fact, and that his motion in arrest, upon the authority of State v. Weyland, 126 Mo. App. 723, 105 S. W. 660, should have been sustained.
In the Weyland case there were three counts in the information under one verification. The first count charged that defendant was a dramshop keeper, and that he sold liquor on Sunday. Another count charged that he sold liquor on Sunday, saying nothing about his being a dramshop keeper. The other count charged that [332] he was not a dramshop'keeper, and that he sold liquor on Sunday. The court held that the two counts expressly charging in the one that defendant was a dram-shop keeper and in the other that he was not a dramshop keeper, were so flatly contradictory of each other that the truth of both could not consistently be verified under one general affidavit. It did not hold that the remaining count was improperly verified with either of the others under one oath. If it had so held the case would have been in point here, or had the prosecuting attorney charged in one count of the information under consideration that the Local Option Law was in force in Newton county, and in either of the others that it was not in force in such county, the case cited would have been in point. As the case stands, we find no such contradiction in the counts of this information as renders their verification under one oath inconsistent.
Appellant’s contention that no proof of venue was offered or made by the state is correct. Only one witness testified to the sale, and he merely said that he bought wine on the day named of the defendant, in Newton county, Missouri, and paid for it.
The information alleges and the proof shows that local option was in force in Newton county outside of the city of Neosho, which had a population of over twenty-five hundred. The state entirely failed to prove, even inferentially, whether the sale was made within or without the limits of the operation of o the law, and for this failure alone the cause must be reversed and remanded for a new trial.
Appellant further contends, however, that the undisputed record in this cause disclosed affirmatively the fact that the Local Option Law was never adopted in any part of Newton county, and therefore he cannot be convicted of its violation. It is necessary to dispose of that question here now. Touching appellant’s contention in this behalf, it is not necessary to go into every detail further than to say that at the trial the state offered no proof of the publication of the notice of the [333] local option election, but it did offer the record evidence, unchallenged as to its sufficiency or competency, to show that on May 2,1904, a proper petition was filed with the county court for the election, and that on said May 2nd, by record entry, the court made all the necessary findings, including a proper finding that Neosho alone was the only city on that date in the county having a population of over twenty-five hundred, and ordered an election for all that part of the county outside the corporate limits of said city to be held June 8,1904; that the election was held in conformity with the order, returns properly cast up by the county court, showing that all of the county outside of the corporate limits of Neosho, including the fourth-class city of'Granby, had participated in said election, and that local option had carried by a majority of one hundred and forty-six votes, and showing due publication of the result thereof. In fact, appellant admits that local option was, or would have been lawfully adopted in said county on said June 8, 1904, but for the further following facts shown by the defendant by competent evidence at the trial. We might put it this way: That the record in this case contains an agreement that on June 3, 1904, thirty days' subsequent to the order of the election by the county court, the city of Granby properly caused a census of its inhabitants to be taken under the provisions of section 3028, Revised Statutes 1899 (now section 7239, R. S. 1909), and filed a proper statutory certificate thereof with the clerk of the county court on June 4, 1904, four days before the election, showing that said city of Granby had, according to said census, which is not attacked in any .way, two thousand, five hundred and fifty-seven inhabitants.
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MANN, Special Judge.
— From a conviction for violation of the Local Option Law in the circuit court of Newton county defendant appeáled to the St. Louis Court of Appeals, and the opinion was there rendered affirming the judgment. A motion for rehearing was filed and sustained. While the cause was pending in the St. Louis Court of Appeals upon rehearing, this court was created, and the cause transferred to this jurisdiction. Cox, J., being disqualified to sit, E. P. Mann was elected to sit in the case as special judge.
Appellant’s first contention is that since he was charged in three counts of the information with violation of the Local Option Law, and in the fourth count thereof with violation of the Dramshop Act, all under one verification, the counts are so inconsistent and contradictory that the verification amounts to no verification in fact, and that his motion in arrest, upon the authority of State v. Weyland, 126 Mo. App. 723, 105 S. W. 660, should have been sustained.
In the Weyland case there were three counts in the information under one verification. The first count charged that defendant was a dramshop keeper, and that he sold liquor on Sunday. Another count charged that he sold liquor on Sunday, saying nothing about his being a dramshop keeper. The other count charged that [332] he was not a dramshop'keeper, and that he sold liquor on Sunday. The court held that the two counts expressly charging in the one that defendant was a dram-shop keeper and in the other that he was not a dramshop keeper, were so flatly contradictory of each other that the truth of both could not consistently be verified under one general affidavit. It did not hold that the remaining count was improperly verified with either of the others under one oath. If it had so held the case would have been in point here, or had the prosecuting attorney charged in one count of the information under consideration that the Local Option Law was in force in Newton county, and in either of the others that it was not in force in such county, the case cited would have been in point. As the case stands, we find no such contradiction in the counts of this information as renders their verification under one oath inconsistent.
Appellant’s contention that no proof of venue was offered or made by the state is correct. Only one witness testified to the sale, and he merely said that he bought wine on the day named of the defendant, in Newton county, Missouri, and paid for it.
The information alleges and the proof shows that local option was in force in Newton county outside of the city of Neosho, which had a population of over twenty-five hundred. The state entirely failed to prove, even inferentially, whether the sale was made within or without the limits of the operation of o the law, and for this failure alone the cause must be reversed and remanded for a new trial.
Appellant further contends, however, that the undisputed record in this cause disclosed affirmatively the fact that the Local Option Law was never adopted in any part of Newton county, and therefore he cannot be convicted of its violation. It is necessary to dispose of that question here now. Touching appellant’s contention in this behalf, it is not necessary to go into every detail further than to say that at the trial the state offered no proof of the publication of the notice of the [333] local option election, but it did offer the record evidence, unchallenged as to its sufficiency or competency, to show that on May 2,1904, a proper petition was filed with the county court for the election, and that on said May 2nd, by record entry, the court made all the necessary findings, including a proper finding that Neosho alone was the only city on that date in the county having a population of over twenty-five hundred, and ordered an election for all that part of the county outside the corporate limits of said city to be held June 8,1904; that the election was held in conformity with the order, returns properly cast up by the county court, showing that all of the county outside of the corporate limits of Neosho, including the fourth-class city of'Granby, had participated in said election, and that local option had carried by a majority of one hundred and forty-six votes, and showing due publication of the result thereof. In fact, appellant admits that local option was, or would have been lawfully adopted in said county on said June 8, 1904, but for the further following facts shown by the defendant by competent evidence at the trial. We might put it this way: That the record in this case contains an agreement that on June 3, 1904, thirty days' subsequent to the order of the election by the county court, the city of Granby properly caused a census of its inhabitants to be taken under the provisions of section 3028, Revised Statutes 1899 (now section 7239, R. S. 1909), and filed a proper statutory certificate thereof with the clerk of the county court on June 4, 1904, four days before the election, showing that said city of Granby had, according to said census, which is not attacked in any .way, two thousand, five hundred and fifty-seven inhabitants.
• Said census was also taken in conformity with the provisions of section 6300, Revised Statutes 1899 (now section 9639, R. S. 1909), which section requires all courts to take judicial notice of the population so shown by said census. Appellant contends that the case stated brings the facts and the law squarely within the term of State v. Mitchell (St. Louis Court of Appeals) 115 S. W. [334]*3341098, never officially reported, and State ex rel. v. Cass County, 137 Mo. App. 698, 119 S. W. 1010 (Kansas City Court of Appeals); that the facts in the three cases are identical, and that upon the authority of the two cases mentioned the taking- and filing of the census by the city of Granby after the date the election was ordered and before the day of election ousted the county court of jurisdiction to proceed Avith the election, receive and cast up the returns, and publish and declare that local option had carried Avithin the territory inclusive of the corporate limits of the city of Granby, because the county court was bound to take judicial knowledge of the census of said city filed with the clerk four days prior to said election, and that the census showed the city, having then over twenty-five hundred inhabitants, could not be controlled in the premises by another than the vote of its oAvn inhabitants. Appellant also contends that as the whole township of Granby outside as well as inside the city limits thereof voted at the same precinct, it could not then, and cannot now, be determined whether the proposition carried by excluding the vote of those residing within the city limits, and the whole election fails. If I felt that the two cases cited correctly declare the law, there would be nothing to do but to sustain appellant’s contention, hold that local option had never been legally adopted in Newton county, and reverse this case outright. Both the Mitchell case, and the Oass county case assume as the premise for all the deduction therein that a local option election under the statute is held for the purpose of determining whether intoxicating liquors shall be sold in all that portion of the county outside of the cities thereof having a legally ascertained population of over twenty-five hundred on the day of election. If I believed the statute intended that the legally ascertained population on the day of the election, or any day subsequent to the day the election was ordered, governed, then I would concede the reasoning and conclusions reached in these two cases to be sound. In my judgment, however, the opinion in each [335] of those cases overlooks the plain provision, or at least meaning and intent of the Local Option Law, article III, chapter 22, Revised Statutes 1899, in force when these elections were all held (now article III, chapter 63, R. S. 1909) which when we consider all the sections thereof together, in order that if possible all may stand, plainly provides for a local option election to be held for the purpose of ascertaining whether intoxicating liquors shall be sold in all that portion of the county outside the corporate limits of any city thereof whose population has been legally ascertained by the county court to be over twenty-five hundred at the date of such order of election, and that if at the date of the order of election by the legal standard of determination any city of the county has less than twenty-five hundred inhabitants, then no matter how many inhabitants it may have by such legal standards of determination on the day of the election it remains included in the order, is entitled to participate in the election, and is bound by the result thereof. This plain intent of the statutes in question is first evinced in section 3027, Revised Statutes 1899 (now section 7238, R. S. 1909), which provides for the calling of an election “upon application by petition signed by one-tenth of the qualified voters of any county who shall reside outside of the corporate limits of any city or town having at the time of such petition a population of twenty-five hundred inhabitants or more.” The Michell case announces the doctrine that if subsequent to the order of election, and prior to the day of election a city theretofore having less than twenty-five hundred inhabitants files its census report, as provided by law, with the county clerk, showing more than that number, such city must be excluded from the operation of the law until such time as it votes for itself upon the proposition, but that nevertheless if by excluding the vote of such city from the returns the count shows the adoption of the Local Option Law, it was properly declared carried in the territory outside of such city. If this be correct, what then becomes of the fact that at the time [336] of filing tlie petition, and ordering the election, the voters of such city were competent petitioners and were necessarily counted in determining whether the necessary one-tenth had petitioned for the election? The ascertaining of this fact is jurisdictional. With such a city in the count when the petition is considered by the court, and out of the count when the election is held, and out of the territory to be affected by the election, how can it be determined whether the necessary number have petitioned for the election who were legal voters in the territory over which the law, if adopted, would be permitted to operate? Then, too, we have the anomalous condition of permitting an election to be ordered and held upon the petition of voters residing in a territory over which the. election- can have no force and effect, which condition the Legislature clearly never intended should exist, because by the section named it expressly excludes those residing in that part of the county not to be affected from the right of petition, and properly so. But the intention of the. Legislature is more clearly evinced by the provisions of section 3032, Revised Statutes 1899 (now section 7243, R. S. 1909), a section of the Local Option Law not noticed in either the Mitchell or the Cass county case. This section is as follows:
“If a majority of the votes cast at any election held under the provisions of this article shall be 'against the sale of intoxicating liquors,’ it shall not be lawful for any person within the limits of such county (lying outside of the corporate limits of any city or. town having at the date of said order of election a. population of twenty-five hundred inhabitants or more) or city, as the case may be, to directly or indirectly sell, give away or barter in any manner whatever, any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever, under the penalties hereinafter prescribed.”
I think this is an express declaration that the election authorized by the Local Option Law is to be held for the purpose of determining whether intoxicating liquors .Shall.be sold in that part of the county outside of the [337] corporate limits of any town or city having a population of twenty-five hundred or more on the date of the order, according to the legal standard of determination at that date. And that since it is not contended, but the record shows, that on May 2nd, when the petition was filed with the county court of Newton county and the order for the election entered of record, the city of Granby, according to the legal standard of determination, had on that date less than- twenty-five hundred inhabitants, it properly participated in said election and local option was legally adopted in all of the county, including the said city of Granby, save alone the city of Neosho, having a population, according to thé order and to the date thereof, of over twenty-five hundred. The census taken and filed after the date of the order did not in any manner affect tbe status fixed by the order.
It has been suggested that the fact that the Legislature fixed the qualifications of voters at local option elections as of the day of election is indicative of the legislative intent that the day of election and not the day the election is ordered governs the status of the territory to be affected. I do not think so. It is true that the Legislature has fixed the qualifications of voters as of the day of election. In doing so it simply followed the usual rule. -It is competent for the Legislature to fix the qualifications of voters at any election as of any day it sees fit. So also it was competent for the Legislature to fix the day the election was ordered as the time, when it should be ascertained what territory is to be affected by the result of the election when held, and this it seems to me it certainly did by the section of the statute last quoted.
Whether or not the city of Granby, after filing its census showing over twenty-five hundred inhabitants, could have called an election later, within the four years, and voted itself out of the operation of the law is not involved here, and not necessary for us to decide.
[338] The judgment is, therefore, reversed, and the cause is remanded for failure of the state to prove the venue.
This opinion being in conflict with State ex rel. v. Mitchell, 115 S. W. 1098, decided by the St. Louis Court of Appeals, and State ex rel. v. Cass County, 137 Mo. App. 698, 119 S. W. 1010, decided by the Kansas City Court of Appeals, this cause is hereby certified to the Supreme Court, in accordance with the mandate of the Constitution.
Gray, J., concurs in result. Nixon, P. J. , concurs in separate opinion.